Est. of: Krappa, L. v. Lyons, M.

J-A06024-19
2019 Pa. Super. 168
ESTATE OF LEONARD P. KRAPPA, : IN THE SUPERIOR COURT OF
DECEASED, BY AND THROUGH HIS : PENNSYLVANIA
ADMINISTRATOR, LEONARD A. :
KRAPPA, AND MARGARET KRAPPA, :
INDIVIDUALLY AND IN HER OWN :
RIGHT :
:
:
v. : No. 822 MDA 2018
:
:
MARK LYONS, D.O.; FRANK PIRO, :
M.D.; JONATHAN C. SULLUM, M.D.; :
JUAN C. BARRERA, M.D.; JAMES :
FRANGOS, M.D.; LOUIS :
DEGENNARO, M.D.; AND :
COMMUNITY MEDICAL CENTER :
:
:
APPEAL OF: COMMUNITY MEDICAL :
CENTER :
Appeal from the Order Entered April 11, 2018
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2012 CIV 581
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.*
OPINION BY NICHOLS, J.: FILED: MAY 23, 2019
Appellant Community Medical Center appeals from the order granting
the emergency motion to compel discovery1 filed by Appellees Estate of
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* Retired Senior Judge assigned to the Superior Court.
1 “[M]ost discovery orders are deemed interlocutory and not immediately
appealable because they do not dispose of the litigation.” Veloric v. Doe,
123 A.3d 781, 784 (Pa. Super. 2015). Nevertheless, “An appeal may be taken
as of right from a collateral order of [a] . . . lower court.” Pa.R.A.P. 313(a).
J-A06024-19
Leonard Krappa, deceased, by and through his administrator, Leonard A.
Krappa, and Margaret Krappa, individually and in her own right. Appellant
claims the trial court erroneously granted the emergency motion to compel,
because Appellees sought the production of documents that are privileged
under the Peer Review Protection Act2 (PRPA). We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
[Appellees] initiated this medical malpractice action . . . in January
2012 alleging a delay in the diagnosis of cancer.
In [the] complaint, [Appellees] raised thirteen (13) counts against
multiple Defendants. Pertaining to this appeal, Count II asserts a
negligence claim against Frank Piro, M.D. with respect to his
interpretation of a CT scan in January 2008. Count VII asserts a
claim of direct negligence against [Appellant]. Count VIII asserts
a corporate liability claim against [Appellant] with respect to the
hiring, training, and/or supervising physicians, including Dr. Piro.
Count IX asserts a claim of vicarious liability against [Appellant,]
alleging [Appellant] is responsible for the actions or inactions of
its employees and/or agents, including Dr. Piro. Count X asserts
a claim of ostensible agency against [Appellant] with respect to
Dr. Piro. In addition, the complaint asserts claims for wrongful
death, survival action, and loss of consortium.
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“A collateral order is an order separable from and collateral to the main cause
of action where the right involved is too important to be denied review and
the question presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b). “When a
party is ordered to produce materials purportedly subject to a privilege, we
have jurisdiction under Pa.R.A.P. 313 . . . .” Yocabet v. UPMC Presbyterian,
119 A.3d 1012, 1016 n.1 (Pa. Super. 2015) (citation omitted).
2 63 P.S. §§ 425.1-425.4.
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During the course of discovery, [Appellees] sought unredacted
copies of [Appellant’s] files for Drs. Piro and Sabbar. [Appellant]
and Dr. Piro objected to the production and asserted the
information requested was privileged pursuant to the [PRPA].
Trial was scheduled to begin on April 9, 2018. On April 5, 2018,
[Appellees] filed an emergency motion to compel [Appellant] to
produce the unredacted and complete credentialing materials for
Drs. Piro and Sabbar. In [the] motion, [Appellees] sought
production of unredacted credentialing files,[3] based on the
recently decided Pennsylvania Supreme Court decision Reginelli
v. Boggs, 181 A.3d 293 (Pa. 2018).[4]
Oral argument was heard on Friday, April 6, 2018. [At that time,
Appellant asserted that Reginelli was inapplicable. Appellant
argued that its credentialing committee constituted a “review
committee” whose records must remain confidential under the
PRPA. Further, Appellant insisted that the performance
evaluations in its files satisfied the PRPA’s definition of “peer
review” materials.] On Monday, April 9, 2018, [the trial] court
conducted an in camera review of the . . . unredacted credentialing
files for both Drs. Piro and Sabbar. Additional oral argument was
heard on April 10, 2018. On April 11, 2018, [the trial] court
entered an order compelling the production of the unredacted . .
. files [generated by Appellant’s credentialing committee]
pursuant to Reginelli.
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3 Specifically, Appellees’ motion requested
the complete, unredacted credential and personnel files of Drs.
Piro and Sabbar setting forth their qualifications or lack thereof,
in the materials submitted in support of those applications, the
circumstances under which they were hired and the manner in
which their employment with [Appellant’s] Radiology Department
ended and/or was terminated. Additionally, [Appellant] should be
directed to produce any memorandum or writing confirming the
nature of the relationships between CMC Radiology, Defendant Dr.
Piro, Dr. Sabbar, Foundation Radiology and [Appellant].
Emergency Mot. to Compel, 4/5/18, at 12-13.
4 The Pennsylvania Supreme Court decided Reginelli on March 27, 2018.
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On May [10], 2018, [Appellant] filed a notice of appeal. On June
22, 2018, [the trial] court entered an order granting [Appellant’s]
request for a stay pending appeal.
Trial Ct. Op. 7/23/18, at 1-2 (unpaginated).
The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On July 23, 2018, the court filed
an opinion pursuant to Pa.R.A.P. 1925(a). The court asserted that Appellees
sought to obtain credentialing materials for Drs. Piro and Sabbar and such
materials are discoverable under Reginelli.
Appellant now presents one question for this Court’s review:
Did the trial court err, as a matter of law, in construing Reginelli
. . . as announcing a blanket rule depriving all previously-
protected credentialing committee materials of peer review
protection, when the issue of a credentialing committee’s review
of physician performance was not before the Supreme Court; to
the extent the Supreme Court addressed credentialing materials,
it limited its discussion to that part of the credentialing process
concerned only with factual review of professional qualifications,
such as board certifications, and professional activities, such as
service on professional organizations; and the Court reaffirmed
that the peer review privilege protects the records of any review
committee when one professional health care provider is
evaluating the performance of another professional healthcare
provider?
Appellant’s Brief at 4 (quotation marks omitted).
Appellant maintains that the trial court overruled Appellant’s “claim of
peer review protection for the performance evaluation materials contained in
the credential files for Dr. Piro and Dr. Sabbar.” Id. at 11. Appellant contends
that its “credentialing committee records relating to peer evaluations,
performance appraisals, and responses to [National Practitioner Data Bank]
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queries, for the initial appointment and reappointment of Dr. Piro and Dr.
Sabbar, which were generated for quality improvement purposes and
maintained exclusively by the committee, fall squarely within the PRPA. . . .”
Id. at 24.
Appellant insists that the Pennsylvania Supreme Court “has consistently
held that performance evaluation by a review committee constitutes protected
peer review.” Id. at 17. Appellant asserts that Reginelli “did not question
whether performance evaluation constitutes protected peer review, but only
whether the performance review in that case was conducted by a qualified
review committee.” Id. Further, Reginelli “did not decide to revoke peer
review protection afforded to performance evaluation by a credentialing
committee.” Id. at 18.
To the extent Reginelli discussed the credentialing review process,
Appellant states that such discussion amounts to dicta. Id. at 23. Based
upon the foregoing, Appellant argues that the trial court “erred as a matter of
law in construing Reginelli as announcing a blanket rule stripping peer review
protection from performance evaluations by a credentialing committee.” Id.
at 23-24. Appellant concludes that this Court must reverse the order granting
Appellees’ emergency motion to compel. Id. at 25.
“Where the issue is the proper interpretation of a statute, it poses a
question of law; thus, our standard of review is de novo, and the scope of our
review is plenary.” Yocabet, 119 A.3d at 1019 (quotation marks and citations
omitted).
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The PRPA provides the following evidentiary privilege:
§ 425.4. Confidentiality of review organization’s records
The proceedings and records of a review committee shall
be held in confidence and shall not be subject to discovery or
introduction into evidence in any civil action against a professional
health care provider arising out of the matters which are the
subject of evaluation and review by such committee and no person
who was in attendance at a meeting of such committee shall be
permitted or required to testify in any such civil action as to any
evidence or other matters produced or presented during the
proceedings of such committee or as to any findings,
recommendations, evaluations, opinions or other actions of such
committee or any members thereof: Provided, however, That
information, documents or records otherwise available from
original sources are not to be construed as immune from discovery
or used in any such civil action merely because they were
presented during proceedings of such committee, nor should any
person who testifies before such committee or who is a member
of such committee be prevented from testifying as to matters
within his knowledge, but the said witness cannot be asked about
his testimony before such a committee or opinions formed by him
as a result of said committee hearings.
63 P.S. § 425.4 (emphasis added).
The PRPA also defines the following pertinent terms:
§ 425.2. Definitions
As used in this act:
“Peer review” means the procedure for evaluation by
professional health care providers of the quality and efficiency of
services ordered or performed by other professional health care
providers, including practice analysis, inpatient hospital and
extended care facility utilization review, medical audit, ambulatory
care review, claims review, and the compliance of a hospital,
nursing home or convalescent home or other health care facility
operated by a professional health care provider with the standards
set by an association of health care providers and with applicable
laws, rules and regulations.
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* * *
“Review organization” means any committee engaging in
peer review, including a hospital utilization review committee, a
hospital tissue committee, a health insurance review committee,
a hospital plan corporation review committee, a professional
health service plan review committee, a dental review committee,
a physicians’ advisory committee, a veterinary review committee,
a nursing advisory committee, any committee established
pursuant to the medical assistance program, and any committee
established by one or more State or local professional societies,
to gather and review information relating to the care and
treatment of patients for the purposes of (i) evaluating and
improving the quality of health care rendered; (ii) reducing
morbidity or mortality; or (iii) establishing and enforcing
guidelines designed to keep within reasonable bounds the cost of
health care. It shall also mean any hospital board, committee or
individual reviewing the professional qualifications or activities of
its medical staff or applicants for admission thereto. It shall also
mean a committee of an association of professional health care
providers reviewing the operation of hospitals, nursing homes,
convalescent homes or other health care facilities.
63 P.S. § 425.2.
In Reginelli, Monongahela Valley Hospital (MVH) contracted with UPMC
Emergency Medicine, Inc. (ERMI) to provide staffing and administrative
services for MVH’s emergency room. The plaintiff went to MVH’s emergency
room and received treatment from Dr. Boggs. Thereafter, the plaintiff pursued
a medical malpractice action against Dr. Boggs, MVH, and ERMI.
During discovery, the plaintiff deposed Dr. Walther, an ERMI employee
who served as the director of MVH’s emergency department and Dr. Boggs’
supervisor. Dr. Walther testified that she prepared and maintained a
performance file on Dr. Boggs as part of her regular practice of reviewing
randomly selected charts associated with the patients Dr. Boggs had treated.
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The plaintiff subsequently filed a discovery request seeking the complete
performance file for Dr. Boggs maintained by Dr. Walther. MVH, ERMI, and
Dr. Boggs raised various objection to the production of the file, including
assertions that it was privileged under the PRPA. Ultimately, the trial court
ordered MVH to supply Dr. Boggs’ performance file to the plaintiff, and this
Court affirmed the trial court’s order.
The Pennsylvania Supreme Court granted allowance of appeal to
determine whether ERMI and MVH had any entitlement to the PRPA’s
evidentiary privilege with respect to the performance file. The Supreme Court
engaged in statutory interpretation of the pertinent provisions of the PRPA and
determined, “the PRPA’s evidentiary privilege is reserved only for the
proceedings and documents of a review committee.” Reginelli, 181 A.3d
at 304 (citation omitted) (emphasis in original). The Reginelli Court
reasoned:
the terms “review committee” and “review organization” are not
interchangeable, as they connote distinct types of entities under
the PRPA. The first sentence of the definition of “review
organization” defines the type of entity that constitutes a “review
committee,” namely, “any committee engaging in peer review.”
The second sentence, in contrast, contains no reference to peer
review, and instead refers to a “hospital board, committee or
individual” involved in the review of “the professional
qualifications or activities of its medical staff or applicants thereto”
by a “hospital board, committee or individual.”[fn10] This second
category of “review organizations” does not involve peer review,
as that term is defined in the PRPA, which is limited to the
evaluation of the “quality and efficiency of services ordered or
performed” by a professional health care provider. Review of a
physician’s credentials for purposes of membership (or continued
membership) on a hospital’s medical staff is markedly different
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from reviewing the “quality and efficiency of service ordered or
performed” by a physician when treating patients. Accordingly,
although “individuals reviewing the professional
qualifications or activities of its medical staff or applicants
for admission thereto,” . . . are defined as a type of “review
organization,” such individuals are not “review
committees” entitled to claim the PRPA’s evidentiary
privilege in its section 425.4.
[fn10] Professional “qualifications” would include, for
instance, a physician’s continuing maintenance of his or her
board certifications, and “activities” could include clinical
research initiatives, continuing education, service on
professional committees or organizations and, more broadly
speaking, other qualifications deemed necessary by the
hospital. Credentials review permits a hospital to retain,
and then maintain, a medical staff of quality professionals.
Id. at 305-06 (citations and some footnotes omitted) (emphasis added).
Therefore, the Reginelli Court indicated that the PRPA does not extend
its grant of an evidentiary privilege to materials that are generated and
maintained by entities reviewing the professional qualifications or activities of
medical staff “i.e., credentials review.” Id. at 306. Additionally, “the
performance file [in Reginelli] was not generated or maintained by MVH’s
peer review committee,” and the PRPA’s evidentiary privilege did not apply.
Id. at 296.
Instantly, the trial court conducted an in camera review and determined
that the files at issue “consist entirely of credentialing materials of Drs. Piro
and Sabbar.” Trial Ct. Op. at 4 (unpaginated). This Court has conducted its
own review of the files, which the parties transmitted under seal with the
certified record. Our review confirms the trial court’s finding.
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Regarding the applicability of the PRPA, the materials in the doctors’
personnel files are generated and maintained by Appellant’s credentialing
committee. The PRPA’s protections do not extend to the credentialing
committee’s materials, because this entity does not qualify as a “review
committee.” See Reginelli, 181 A.3d at 306. Accordingly, the trial court did
not err in its interpretation of the PRPA, and Appellant is not entitled to relief
on its claim.5 See Yocabet, 119 A.3d at 1019.
Order affirmed. Appellee’s application to strike Dr. Piro’s brief denied
as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2019
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5In light of our disposition, we deny as moot Appellees’ application to strike
Dr. Piro’s brief.
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